Ramesh Chandra Kaithal vs State of Jharkhand

R. Banumathi, C.J.—This writ petition is filed for declaring that Clause (ii) of Rule 30 of the Jharkhand State Housing Board (Management & Acquaitance of Residential Estate) Regulation, 2004 (for short Regulation) as ultra vires the provisions of Parent Housing Board Act of 2000 - Jharkhand Housing Board Act, 2000 whereby a provision has been made for fixation of commercial price for allotment of cut/surplus plot with conditions of one-time payment and that it cannot be used for commercial purpose. The petitioner also seeks for quashing the letter No. 886 dated 12-05-2011 so far the price of the plot in question and terms of onetime payment is concerned. Brief facts:- The petitioner has been allotted a plot bearing No. 183 for an area 2400 sq. ft. at Harmu Residential Colony, Harmu Ranchi vide letter No. 723 dated 08-05-2010 the petitioner was directed to deposit Rs. 2,39,753/-within 30 days and the rest amount of Rs. 5,59,424/- in 60 equal monthly installments and the petitioner paid the cost of the plot No. 183. As per clause 11 of the letter dated 08-05-2010, the allotted plot can be used only for ''residential'' purpose and it cannot be used for commercial purpose.

Adjacent to the said plot No. 183, there is a cut plot. The petitioner applied for allotment of the said cut plot as per clause (iii) of Rule 30 of the Regulation fixing the price of the plot at commercial rate. Vide letter No. 886 dated 12.5.2011, the cut plot was allotted to the petitioner and the petitioner was asked to deposit Rs. 22,05,000/- for the said plot before 30.6.2011 in a single installment. As per clause 11 of the said letter, the petitioner cannot use the cut plot for commercial purpose although the petitioner would have to pay the price at commercial rate for the said cut plot.

Challenging the vires of clause (ii) of Rule 30 of the Regulation, the petitioner filed the writ petition contending that the Jharkhand State Housing Board Act, 2000 does not confer power upon the authorities to frame Regulation charging the plot cost at Commercial rate and the amount to be paid in the installment. The case of the petitioner is that a Regulation cannot violate or override the provisions, objects and true spirit of the Parent Act, namely, the Jharkhand State Housing Board Act, 2000 and the provisions of the Regulation for charging at commercial rate for a cut plot of a residential plot is unreasonable and arbitrary.

During the pendency of the writ petition, the cut plot allotted to the petitioner was cancelled by letter dated 13.08.2011. The petitioner filed amendment application for quashing the letter No. 1899 dated 13.8.2011, whereby the respondent-Board had cancelled the allotment of cut plot to the petitioner.

Resisting the writ petition, the Jharkhand State Housing Board has filed counter contending that under Rule 30 of the Regulation, the Board decided to allot cut plot lying adjacent to the plot of the petitioner. As per Rule 30, the Board took the decision for allotment of the cut plot in favour of the petitioner fixing commercial rate at the cost of Rs. 22,05,000/-. The respondents acted in accordance with the prevalent Rules and the Rules do not violate the provisions of the Parent Act and are not arbitrary.

Mr. Rahul Kumar, learned counsel for the petitioner, contended that Rule 30 of the Regulation charging commercial rate for cut plot of the residential area is unreasonable and unjustified and violative of the Parent Act. It was submitted that the Regulation cannot violate or override the provision, object and true spirit of the Jharkhand State Housing Board Act, 2000. Learned counsel further contended that as per clause (ii) of the letter of allotment dated 12.5.2011, the petitioner cannot use the cut plot for commercial purpose although he has to pay the price at commercial rate for the cut plot and there is no rational basis for fixing the commercial rate for the cut plot in the residential area. It was further submitted that even during the pendency of the writ petition, the Housing Board has arbitrarily cancelled the allotment of the cut plot and the same is liable to be quashed.

Md. S.N. Ahmad, learned counsel for the respondents, submitted that the petitioner cannot claim the cut plot as a matter of right and while the petitioner is willing to take advantage of Rule 30 under which he seeks for allotment of cut plot, the petitioner is not ready to face the rigour of the same Rule in paying the cost at commercial rate in one single instalment. It was submitted that the petitioner has challenged the same provision of Rule 30 on the basis of which the petitioner seeks allotment of a cut plot in his favour. It was further submitted that the respondents have acted in accordance with the rules and the action of the respondents cannot be termed as arbitrary or illegal.

We have considered the rival submissions and perused the materials on record.

To appreciate the rival submission, we may usefully refer to the definition of cut plot under the Rules, which enable the petitioner to apply for allotment of cut plot. Rule 2(xxxi) defines cut plot, which reads as under:

"2(xxxi). Scattered (cut) plot means those plots which remained unallotted as a piece/part after development/allotment of dwelling units and it is not fit to be allotted independently for housing. But in the following circumstance scattered piece of plot shall not be fit to be allotted if:

(i) It is a part of proposed road or park.

(ii) Sewer line, water drainage and water supply pipe line passes through it.

(iii) Any other scheme of the Housing Board is proposed thereon."

Rule 30 stipulates the procedure for allotment of ''scattered (cut) plots'', which reads as under:

"30. Allotment of scattered (cut) plots shall be made under the following procedure by the Housing Board:

(A) On receipt of the application for carrying out allotment the same shall be scrutinised by the Executive Engineer of the concerned Division and the report shall be submitted to the Housing Board.

(B) On finding the inquiry report in conformity with the provision of section 2(XXXI), allotment shall be made after receiving instalment in one lump-sum, determining the latest/present commercial value.

(C) Allotment of scattered plot shall be made among such allottees against whose name estate is already allotted in nearby/frontrear (place).

(D) If the scattered plot to be allotted is attached in a similar manner to earlier allotted plot/flat of more than one allottees, in such circumstance, opportunity for getting allotment shall be given to the concerned allottees by issuing notice. If more than one allottee is ready to give value of the plot in one lump-sum at a commercial rate then the decision of allotment among them shall be made through the draw of lottery.

(E) The allotment of scattered plot situated in the residential area shall not be made for the commercial purpose."

As per Rule 30, the allotment of cut plot can be made on the request of an allottee, provided he is ready to pay the cost of the cut plot at a commercial rate and in one stroke. The conditions stipulated for allotment of cut plot are (i) the allottee to pay the cost of the cut plot at commercial rate; (ii) the cost to be paid in one single instalment.

The petitioner applied for allotment of cut plot, which is between his plot H-183 and the 25 feet road. When the petitioner applied for allotment of cut plot, the petitioner was well aware of the Rules (Rule 30) prevalent for allotment of cut plot and he being aware of the same made an application for allotment of cut plot which was lying vacant adjacent to his plot. On the basis of the Rules, the Board allotted cut plot in favour of the petitioner at the commercial rate of Rs. 22,05,000/-.

As discussed earlier, at the time when the petitioner applied for the allotment of cut plot, he was conscious of the provisions prescribed in Rule 30. The cut plot was allotted to the petitioner by the respondents in accordance with the Rules. The petitioner cannot claim allotment of cut plot as a matter of right. It is only by virtue of Rule 30 the petitioner seeks allotment of the cut plot lying adjacent to his plot. The petitioner who has taken advantage of the provisions of Rule 30 in getting the allotment cannot turn round and challenge the validity of the said provision. As rightly contended by the respondents, while the petitioner is ready to take advantage of the provisions of the Rules, at the same time he is not ready to face the rigors of Rule 30 by paying the cost at commercial rate in one single instalment.

It is to be pointed out that only after getting the allotment order of cut plot in his favour, the petitioner had chosen to challenge the vires of Rule 30. In so far as the challenge to the vires of Rule 30, fixing the cost of price at the commercial rate, the Board is free to determine the rate and the manner in which the costs of property allotted to the allottee have to be realized. The petitioner had already obtained allotment of one plot H-183 measuring 40 feet x 60 feet. To get allotment of another plot which is adjacent to his plot measuring 60 feet length, 29 feet breadth on the western side and 32 feet in the eastern side, means he would be obtaining additional space of the above said measurement. Such additional space added to the petitioner''s plot enhances the value of the property. For instance, in this case, the petitioner''s HIG plot H-183 is situated on the eastern side of 20 feet road, by getting the allotment of cut plot it became a corner plot, having access of both sides, which substantially enhances the value of the property.

Under Section 28 of the Bihar State Housing Board Act as adopted by the State of Jharkhand, the Housing Board shall undertake various types of housing and improvement scheme, such as (a) the Integrated Subsidized Housing Scheme for industrial worker and the economically weaker section of the community; (b) the Low Income Group Housing Scheme; (c) the Middle Income Group Housing and other schemes, which includes Slum Clearances and Improvement Scheme. For implementing the various housing and the improvement schemes, the Housing Board has to raise the revenue to discharge the statutory obligation under Jharkhand State Housing Board Act, 2000.

It is for the Housing Board to allot the plot at the rate fixed by the Board in accordance with the Rules and Regulations. Having availed the benefit of the allotment of cut plot under Rule 30, the petitioner cannot turn around and challenge the vires of Rule 90. Since the petitioner has not paid the amount of Rs. 22,05,000/- for the allotment of cut plot and not complied with the condition of the allotment, vide letter No. 1899 dated 13-8-2011 the Housing Board has cancelled the allotment of the cut plot to the petitioner. The cancellation of the allotment is in accordance with the provisions of the Jharkhand State Housing Board Act and the regulations framed thereon. We do not find any arbitrariness in the action of the Jharkhand State Housing Board in cancelling the allotment of cut plot to the petitioner. There is no merit in the contention that the cancellation of the allotment is arbitrary. The writ petition is bereft of merit and liable to be dismissed.

In the result, this writ petition is dismissed.